Craig McClellan's hand
Plaintiffs’ personal injury attorneys have been called the entrepreneurs of adversity. It is they who initiate lawsuits on behalf of those who claim injuries for which the law awards money damages. The attorneys are entrepreneurial in the sense that they don’t charge hourly fees for their services. When they accept a client, they in-stead get a share of whatever financial rewards the case might eventually yield. And those rewards can be high. In 1991, according to the current Lawyer's Almanac, American courtrooms saw 750 verdicts of one million dollars or more. The average verdict for a knee injury in 1992 was $167,256.
To a man (and they are predominantly male and white), plaintiffs’ attorneys are gamblers. On the table, they place not just their overhead — salaries, malpractice insurance, office rent, and so forth — but also all the out-of-pocket expenses involved in building a legal case: filing fees, deposition transcripts, and most significantly, services from various experts who commonly charge from $200 to $500 per hour. When a plaintiff wins (either a settlement fee or damages awarded in trial), the money goes into a trust account out of which the plaintiffs’ attorney is reimbursed for the expenses and paid his “contingency fee.” This agreed-upon share of the victory usually ranges from 25 to 50 percent. If the plaintiff loses, his lawyer walks away with nothing.
Of the 9165 active members of the San Diego County Bar Association, fewer than 300 can be called true plaintiffs’ personal injury attorneys, those who actually take cases to trial and primarily do personal injury work, according to Cynthia Chihak, president of the San Diego Trial Lawyers Association. Far fewer rank among the litigating elite, that rarefied group of lawyers who win seven-, eight-, and even nine-figure damage awards. Through such victories, these attorneys set standards for other jury verdicts and settlements in similar cases nationwide.
The half dozen San Diego plaintiffs’ attorneys interviewed here all stand at or near that pinnacle. All have won awards for their clients in excess of one million dollars; some far in excess of that. None would discuss how much money he or she actually earns, though attorney Dennis Dorman did acknowledge that “any attorney on the list of people that you’re talking to has probably had years when they’ve made half a million dollars. You could make a million.” If none of the six wanted to specify what he makes, however, all were eager to talk about how they make their living.
Craig McClellan, 45, from childhood on wanted to be a lawyer. He served in the Marine Corps from 1969 through 1972, then moved to San Diego and got his law degree from the California Western School of Law. He went to work for Luce, Forward, Hamilton, & Scripps (one of San Diego’s two largest law firms), became a partner after five years, then quit in 1987 to start his own practice as a plaintiff’s personal injury attorney.
His State Street office, a former industrial building that’s now a showplace of old brickwork and Southwestern art, houses three attorneys (including McClellan) and four staff members, who together handle no more than 15 cases at a time. Although McClellan worked primarily on the defense side while at Luce Forward, he says the work lacked satisfaction. “You’d call the insurance company and say, ‘Well, we won the case,’ and they’d say, ‘Oh, that’s good. Send us your bill.’ They could care less.” McClellan says that representing plaintiffs, in contrast, makes you feel “that you can make a difference in [people’s] lives.”
What characteristics distinguish plaintiffs' attorneys from defense lawyers?
The whole case concept is different. On the plaintiff’s side, we develop a theme of the case, and then as we prepare the case we enhance that theme and follow it.
On the defense side, the approach is, “Let’s go find all the holes in the plaintiff’s case.” It’s a shotgun approach. More reactive.
What sort of personalities are attracted to the two jobs?
Philosophically, I think they differ tremendously. People who do the plaintiff’s work have a different attitude about responsibilities in society. They have an attitude more that gets away from the old caveat emptor, let the buyer beware. They’re more protectionist. They’re looking out for consumers, the people that have less, the people that know less. The people that can’t defend themselves. And the people that don’t have any idea what they’re getting when they buy something, other than what they see.
On the defense side, the attitude is more, “Every man for himself. Life is dangerous and people get hurt, people get killed, and you have to take your lumps and stand on your own two feet.” Whenever you attack a corporation or a manufacturer, the defense attorneys typically have righteous indignation. “How can you blame this on our company? The driver was speeding. It’s his fault.”
Do these personality differences extend to political views?
Your plaintiff’s lawyers tend to be politically more liberal, and they tend to follow more of the principles of the Democratic Party, although there are some notable exceptions. I think the defense lawyers are very conservative. And you see, the other part of the defense is keeping damages down. So fiscally, they’re conservative.
How does your life change when you're in trial?
Maybe on a weekend I’m down here working on the trial, from dawn until well after dark. And once in a while I’ll stop and I’ll think, what are other people doing today? What are the jurors doing? They’re probably out doing grocery shopping, probably not even giving a thought to the trial. And here I am, thinking about nothing else. I can’t talk about anything else.
How long do your trials last?
It varies. Probably the shortest has been four or five days and the longest six months. That was the Honda ATC case. [McClellan sued the Japanese auto maker for injuries sustained by his clients while riding on Honda’s “all-terrain vehicles,” which McClellan contended were inherently unsafe.]
Do you have a regimen for dealing with the stress?
I run, about 35 to 40 miles a week.
Even when you're in trial?
Not always on the trial days, Friday, Saturday, and Sunday absolutely. If I can work it in on the other days, I will. But...I’m starting at three in the morning, and usually what happens is at the very beginning of the trial, I’ll be able to [run] because I’ll have spent the weeks before preparing. As the trial goes on, I end up not being able to do it Monday, Tuesday, Wednesday, and Thursday.
But I find running is a great way to think about what you’re going to do. I try to anticipate what every witness could possibly say, for instance, on cross-examination.
Can you describe your style in trial?
Overall my style is one that emphasizes reason and common sense. I try to have what I guess you would call an affidavit face. I try to make a credible appearance. Kind of the “Let’s sit down and reason together” approach. It’s not a slam bang hit ’em over the head with a hammer kind of approach. And it’s hopefully not so understated an approach that somebody’s going to say, “What did he say? What was his point?” You have to weave in excitement. You have to make the presentation entertaining.
How do you do that?
We have different techniques. We do it more now with demonstrative evidence than ever before. Years ago trials primarily involved lawyers talking. People in the old days would love to come to listen to Clarence Darrow for three days in his final arguments. Nobody will do that anymore. It’s a two-minute mind. Now people are used to getting the full story in no more than two minutes on the evening news. You might get a 12-second sound bite on different witnesses. But if [TV news reporters] cover a trial, it’s going to be in less than two minutes.
So nowadays you have to find demonstrative evidence that has impact. You have to have words that have impact. Even colors that have impact.
The color of the exhibits will dictate what the jury remembers, to some extent. Reds, for instance. If you’re showing a graph or a chart, you use red, blue, green — they have different connotations for the jurors.
Would you ever wear a bright red suit?
No, I would wear something that would give credibility. That’s my personal style. My philosophy is that the jurors should remember that you were dressed well but not remember what you were wearing. Some defense lawyers still subscribe to the philosophy that you never wear more than three suits in trial, no matter how long [the trial] lasts. Make sure they’re all wrinkled, so the jurors think you’re poor and your clients can’t afford a good lawyer. That kind of thing. Some lawyers will [intentionally] wear different-colored socks, and the jury will notice them; they’ll be giggling and making comments, and it’ll get the attention away from the witness.
But you don't do that?
No, no, no. If my case has to depend on how I dress. I’m in trouble. What I’m saying is that some lawyers, and myself included, will use attire when appropriate, to direct attention. If you go to a trial and watch closing arguments, invariably you’ll see all the lawyers in dark blue suits. Because studies show that’s the ultimate credibility suit.
I had a trial a few years ago in Los Angeles. And, like, a week and a half before the trial, we had to go up and make an appearance before the judge.... We got up there and she said, “My trial just settled, and we’re going to start your trial now....” She went through jury selection in no time. And I was there giving my opening speech in a light blue pincord suit. Kind of like Matlock wears. I would never think of doing that ordinarily. I felt a little bit uncomfortable. Because a suit like that, bright colored, summer weight suit, kind of lends some frivolity and lightness to the case — which should be a real serious matter.
Tell me about one of your favorite pieces of demonstrative evidence.
I had a case about ten years ago against Porsche for an accident that happened in La Jolla, and they brought over to California from Germany a test car, the same kind of car that was involved in the accident, and a test driver. They got a Hollywood film crew to come down. They blocked off Prospect Street, and they re-ran their car going through this stretch with this driver at 65,85 miles an hour, filming it. They intended to use that film at trial to show that this car was well equipped to handle those turns at tremendously high speeds, higher than [the plaintiff] was going.
We took that film and had it transferred to videotape, and then we had it broken down frame by frame, and then we had the frames enlarged, and we kept doing this until we got inside the driver’s window [and] we saw what you didn’t see on the film at all. That was the race car driver, a skilled driver, literally fighting the steering wheel to keep the car on the road. And having to counter-steer the tendency of the car to oversteer, which was exactly what we were claiming happened. He was working like crazy. The guy was probably sweating by the time he finished this three-block strip. But watching the film, you’d never see it. It looked as smooth as could be. Two totally different images. We brought in a huge 100-inch screen and put this on and went frame by frame. And it was an incredibly different impression.
Can you tell when a jury has turned against you?
I always try. I always try. It’s just incredible. You think you can read people so well, and hopefully you can when you’re selecting the jurors, and then all of a sudden once they become jurors, it’s so hard to tell. You’ll get a smile once in a while. You’ll get a nod. You’ll see somebody sitting there with a grimace and you’ll think, “Uh-oh, that’s not good.”
I remember a bad-faith case I had up in Los Angeles, probably 13 years ago. I was arguing a case to the jury and talking about how much they should bring in punitive damages. And two women in the back row who I had always thought were on my side sat there and frowned, and I thought, “Oh, no, this is terrible.” [But the] jury came back with a million-dollar verdict. And afterward, those two said, “We just wanted you to shut up. We’d heard enough.”
Now the first time that happened to me, that wasn’t the case. In my very first trial, I never brought up the matter of money until the end of the case. If you talk to plaintiff’s lawyers about how to approach the amount of damages with the jury, some will say, “Get it out up front. Start talking right away about the size of the case.” Because you don’t know where [jurors are] coming from, in terms of what they think is a lot of money, or isn’t. In this first case, however, I was in my final argument when I suggested for the first time a $65,000 award for this fellow with a broken leg. And same thing; woman juror in the back who I thought was with me all the way shook her head. That was the first inkling I had that those jurors thought that was way too much.
Did they go against you?
Did you change your approach after that?
Yes. It’s something that I start talking about right in jury selection. I always mention the amount of money involved and [ask] how they feel about that. You have to be up front. When you’ve got a quadriplegic or somebody severely brain injured, the jurors know you’re talking about a lot. But even so, they don’t often have any idea of how much, when you talk about the cost of medical care, especially future costs. It can be incredible amounts to those people. To anybody.
What about the award for “pain and suffering”?
That is where the skill of the lawyer, the preparation and thought process, really comes into play. It’s often effective to use analogies. I spend a lot of time thinking about ways to tell the jury stories by which they could understand how much something would be worth.
Let’s say we’re talking about a fellow who lost his right arm. And let’s say the facts are that he loved to fly fish. How do we get the jury to understand what that might be worth? Let’s say I’ve decided to ask the jury for $5 million for the loss of that arm, for the pain and suffering and so on. I might pose something like this: Now ladies and gentlemen. I’ve suggested to you that $5 million would be an appropriate award for Mr. Smith’s pain and suffering and his loss of enjoyment of life. It’s a lot of money. There’s no question about that. But let’s just suppose, for instance, that after this trial is over, Mr. Smith goes up to the old cabin that he told you he has up in Lake Arrowhead, and his good friend Sam Jones comes up and says, “John, come on, Let’s go out and do the fly casting like we love to do.”
And John Smith says, “Gee, Sam, I’d love to go fishing. You know how much I love to do that, but you see I lost my casting arm in a horrible accident last year. But — I’ll tell you what. This jury in San Diego last month awarded me $5 million, and I’ve still got it all. I’ll tell you what. I’ll give you that $5 million if you give me your right arm.” Now what do you suppose Mr. Jones would say?
How do you feel when you lose a trial?
I almost want to go into another trial immediately and try to forget [the loss]. I want to immediately get rid of the feeling that it leaves.
And when you win?
When I win a trial, I feel like that’s just the first step. Even though you’ve won the jury verdict, you’ve got to win the next steps [possible appeal or reduction of the award by a judge].
Is there a point where you can celebrate?
Yeah, when the money’s paid. That’s the time to celebrate. Until then, you can’t let loose too much.
Dennis Dorman remembers as a child watching The Defenders and Perry Mason and yearning to be a trial attorney. Graduated from the University of California’s Hastings College of the Law in San Francisco, he says he was inspired by several plaintiff’s attorneys who lectured to the students there. He moved to San Diego and went to work for a small firm for seven months, then opened his own practice, now located on the eighth floor of the salmon-colored highrise at Ash and State streets downtown. He works there with two young attorneys whom he employs. Dorman is 47.
A trial lawyer in his late 30s is still a baby.
Experience! The pressure! The complexity of putting a case together. It’s like a good doctor. Until you’ve seen quite a few cases and situations, how do you know how to act on your feet and respond appropriately? If you’ve never tried a lawsuit, how the heck can you say you’re a trial lawyer? How can you say you’ve never lost a case? Anybody who says they’ve never lost a case is a liar who never tried one.
Trials eat you alive. You’re in combat! It’s like being a fighter pilot! Someone’s going to crash and burn. And you don’t want to be him.
We [trial lawyers] all sleep poorly. We often all of us have problems with health — stomach or something anxiety related, because we eat and breathe our cases with our clients.
If [trial lawyers] have any sense, they get out of it by the time they’re in their late 50s or early 60s. There are attorneys here in town who were trial horses into their 60s. But then you hear they retire, and a year later you see the obituary. My gut feeling is if I’m still trying cases in my 60s, someone should shoot me.
What does it take to be a good plaintiff’s attorney?
A good plaintiff’s lawyer first has ego. If he doesn’t have confidence in himself, he’s not going to sell his client. Secondly, he has to be extremely conscientious. A third quality is tenacity. Because finding the truth is a search. And the other side doesn’t want to tell you what you need to know.
What characteristics distinguish plaintiff’s attorneys from defense attorneys?
You’ve got a real bias here. I really show my bias! I love plaintiffs’ lawyers. I really love ’em. I mean, I could embrace them. They’re out there fighting for the little guy against long odds. They invest their own money, as we all do. We put in tens of thousands of dollars for some poor guy that may never work again or is badly injured. Then on top of that we put in all our salaries and our overhead, not to mention years of our lives — to try to help somebody.
Great plaintiffs’ lawyers have a huge well of compassion for the unfortunate. I don’t know anyone in the group that doesn’t contribute to St. Vincent de Paul.... The plaintiff’s bar is totally behind it. At least some of my friends are. We really feel that it’s our mission to get a little justice in life for those who are not represented.
And the system is totally stacked against us in this state. The rights of plaintiffs are being eviscerated constantly by our present [California] Supreme Court and some of the courts of appeal. The laws increasingly are the result of powerful, well-financed private-interest groups in Sacramento, who are not concerned with the rights of the consumer. They’re making it very difficult for a lot of us to function! The courts are underfunded. The judges have become administrators concerned with case management rather than justice. What was once one of the most enlightened judicial systems in the country 30 years ago has fallen by the wayside.
What does it cost to take a case to trial?
Awful! It’s more expensive than ever. I have to turn away clients with perfectly good cases because there just isn’t enough money involved. Not to mention my overhead, of course. I just settled a case, and my out-of-pocket was $22,000. I have had cost bills of up to a quarter of a million dollars. Almost broke me! I had to actually liquidate all of my personal savings! And the case was no better than a 50-50 chance. But when you get caught up in the case, you’re $20,000 in, then you’re $50,000 in, and then what do you do? You keep feeding it and hope that you can somehow bring it to a successful conclusion....
People come to me with perfectly good cases worth $10,000 to $15,000, and all I can say is, I can’t afford to take the case and try it for $15,000. Because my fee’s a third. That’s $5000. I cannot put time, effort, not to mention invest another five in the case to get it to trial. I just can’t do it. The system has priced that segment of the public out of the justice system. The insurance carriers are trying to destroy the plaintiffs bar. They keep trying to put in legislation to take away the right to jury trials. With a little luck, they’ll get some arbitrator who used to work for them, and they’ll control the system. That’s where it’s going.
Juries are the only hope for this country. Thomas Jefferson was adamant; we had to have trials by jury in this country. Because it’s the only real protection you have from the despot, the government. It’s not efficient. It’s expensive and inefficient. But the alternative is worse.
Why are there so few women trial lawyers?
The stress factor is enormous. The hours are so long that the first thing she needs to do is totally forget having a family. Because if you have children, there’s going to be no one home to nurture them. The hours are so long in trial, and the weekends that have to be spent in the office, that any woman who ever thought of having children ought to be sterilized immediately so she could pursue her career. Because the children will suffer great deprivation if their mother’s in trial law. It’s just not a career for a mother.
Now assuming the woman is totally career oriented, doesn’t have a desire to be married or have children, then I think it’s open to her. I remember Marilyn Huff, who’s now on the bench, was a great trial lawyer. I had one of my toughest trials [against her]. She was cute. She was smart as a tack. And she damn near cut my heart out while she smiled at me. I was just trying to survive in that court. I won, but even then, one of the jurors afterward thought I’d been hard on her. And I was using kid gloves on the woman!
You have to be very aggressive. You have to be assertive. It’s not a feminine characteristic admired in society. I often tell my wife I don’t want my daughter to be a trial lawyer. God, it’d ruin her! Very few women have the ability to reconcile femininity with being a successful trial lawyer. Too often they become abrasive as opposed to assertive. It’s a fine line — to be soft-spoken and feminine, as society thinks of it, and then to be day in and day out, every waking moment, under attack and defending yourself and asserting the positions of your clients.
A competent female attorney can be dangerous. More so than a man of equal competence. Because the jury will give her, or feel that she deserves, some special consideration. You have to be more careful how you interact in front of a jury with a female attorney. You have to go the last mile to be nice.
How does your life change during trial?
My wife speaks of PTS — pretrial syndrome. I get anxious. I don’t sleep well. It could be months ahead of time. Depends on how huge the trial is. I was a mess when I had a quarter of a million tied up in that case. That was our financial life. In fact, I’m still taking [antacid medication] for my stomach. I don’t think I’ll ever recover from what I did to myself.
The magnitude of the trial [also is proportional to the amount Dorman suffers]. If I’m looking at a $50,000 or $100,000 damage case, ehhh — okay, obviously I’m going to work it hard because I want to win, but I probably won’t lose as much sleep. On the other hand, if I have $ 100,000 in costs in the case, and I’m trying to get a million dollars for my client, and I have several good attorneys against me, I’m going to start tossing and turning three months before the trial.
It’s a hell of a lifestyle. You never know if the money’s going to come in the door or not. You have all the concerns any businessman has, except you have no certainty of cash flow.
Juries in most civil cases are asked to relate to amounts of money that are so much larger than they deal with in normal life, how do you get people to cross that mental line?
It’s difficult. First, your client needs to have curb appeal. Clients that don’t have curb appeal are very hard to get large awards for.
What’s curb appeal?
Just really nice, decent human beings. Someone who clearly comes across as a salt-of-the-earth type.
What else do you do to get the jury to cross that line?
Well, every good plaintiff’s lawyer wants to wrap himself around his client. You want the jury to identify you with your client. And you hope that to the extent that they will learn to like you and to respect you, that will be imputed to your client and will result in a better outcome.
Do you have any regimen for staying in shape during trial?
Oh yeah, swimming. I used to do a mile a day. Now I usually do 100 meters every morning. During trial, it depends on what’s popping. Swimming’s expendable. But it’s very much part of my life otherwise. It’s one way to get some exercise and at least relieve tension. The alternative is alcoholism, and I’m trying not to do that.
What have been some of your most satisfying cases recently?
Well, of course there was the Bugalski case [for which he won the 1990 Trial Lawyer of the Year award. Dorman has the judgment, in which the jury awarded $2 million to a couple whose two grown daughters were burned to death when their leased van crashed, framed and hanging on his wall]. That was a record award for [loss of] society and companionship of children who’d moved away from home. I felt really good about that verdict because [defense attorneys] wouldn’t offer me a penny on that case. Not a penny.
What about the case mentioned in the San Diego Trial Lawyers Association newsletter last year, in which the acoustic ceiling installer fell off the scaffold?
I was disappointed in that case by the size of the award [$450,000 minus 25 percent for Dorman’s client’s comparative fault]. I didn’t have a problem with [the reduction]. But I felt that the verdict was not enough. It’s a badly broken ankle. He has pain all the time. And to live a life in pain to me is worth more than a couple of hundred thousand dollars. Especially when it impairs his ability to work and he needs to find a new profession. I thought it was a chintzy verdict. Though it was more than [the insurance company] offered, by quite a bit. I think their best offer was $100,000.
Insurance companies are awful! Insurance companies know that times are bad. They know there’s no compassion in the verdicts from juries these days. Jurors won’t give anybody a break if they can help it. They aren’t getting any breaks; no one else is getting any. Juries in San Diego right now are as tight as bark on a tree.... You win, but it’s 50 cents on the dollar of what the client deserves. The same case three or four years ago would have been twice as much....
What would you do if you weren’t a lawyer?
I don’t know what I would do. I think about it all the time. It’s an insane way to live. I think about going into business. But just making money to make money would be pretty unfulfilling. I’m used to being a professional. It’s hard to conceive of being just a business person.
The coal-mining town of Monongahela, 26 miles south of Pittsburgh, Pennsylvania, was the birthplace of Vincent Bartolotta 47 years ago. Bartolotta never thought of becoming a lawyer when he entered the University of Pittsburgh on a soccer scholarship. “I had no lawyers in our family.” After getting his undergraduate degree in English literature, a twist of circumstances led him to enroll in the university’s law school, where he continued playing soccer and participated in the 1968 Olympics. After getting his law degree, Bartolotta joined the Marines, serving in Vietnam for 13 months. He then returned to San Diego and took a job with Higgs, Fletcher & Mack, before leaving four and a half years later to form his own firm with colleague Mike Thorsnes. Today their company, which also includes John McGuire and Michael Padilla as equity partners, employs a total of 16 plaintiffs’ trial attorneys and about 55 other staff. Just as his interest in law bloomed late, Bartolotta says he didn’t focus on trial law until he participated in a Moot Court case late in his last year in law school and won a notable victory.
Did you know at that point that you wanted to be a plaintiffs attorney?
In fact my client was one of the defendants. But as I sat in the judge’s chambers after the competition and he was congratulating me, he looked at me and said, “You were fantastic during this, but son, you are not a defense lawyer. You are a plaintiff’s lawyer.” It went in this ear and clattered around in there and stuck. But it didn’t come to fruition until years later, because Higgs, Fletcher & Mack is an insurance defense firm. That’s all they do. Or did. And so that’s all I did for four years, and I was good at it. I was very good. I won my cases. But I wasn’t comfortable with representing or defending big insurance companies against the little guy.
How did the judge know you should be a plaintiff's attorney?
’Cause I like people. I think he saw that. I was into it with my heart and soul, and that works well being on the side of the little guy against the big guy.
What makes a great plaintiff's attorney?
I can tell you what it is for me. I really care. I mean, I really care. I worry about my clients. I think about them all the time. Their injury or damage or hurt becomes mine. I wouldn’t put the hours in or work as hard or give up as I do personally if I didn’t really care....
Did you ever think about going into criminal law?
I did a lot of criminal law when I was in the Marine Corps. But I just got burned out real quick on the kinds of things I had to deal with in the criminal area. Here, in what I do there’s a moral plus, which is, I can make a meaningful change in our society. I had a client once with no life left after hideous burns, and.. I ended up resolving his case that no one else would take and protected him and his whole family for college educations and a life and a future. He named his fifth son after me. What more can a man ask?
I still get tacos at Christmas time. Watermelons and cantaloupes in the summer from clients. Things like that that are the human side of it. That makes it nice.
How does your life change while you're in trial?
What life? Everything else stops. You eat, sleep, drink, breathe that trial. Night and day. That’s it. Period. That’s all there is. I usually start six o’clockish. Though I’ve actually had 24-hour-straight days in trial on cases. I work whatever it takes to feel as ready as I like to be when I stand tall in that courtroom.
How many actual court trials have you had?
Oh, my. If I count all the trials in the military, literally hundreds.
Can you describe for me your style as a litigator?
I try hard to simplify the issues. I don’t try to kid the jury and pull the wool over everyone’s eyes. I think my juries sense that. So I would say if I had a style it’s probably an honest, straightforward style.
How important is physical appearance?
It’s important for first-impression reasons. But if you’re putting on a facade, in dress or hairstyle or whatever, a jury will see through it. ’Cause they’re 12 people from 12 different walks of life, and somebody’s going to pick it up. One example is that I’ve been wearing a carnation for over 18 years now every day.
When I was at Higgs, Fletcher & Mack I started wearing one. I told myself before I left Vietnam that I’d take the time to stop and smell the flowers, and I guess the way that I started to do that was by wearing one a couple days or so. And people there really reacted to it positively. When it came time to have a trial, I questioned whether or not I should wear the boutonniere. I thought, “Well, damn it, I do wear a carnation every day, so why should I change and not be myself in the courtroom?” So I wore it. I was shocked at the response. The male jurors in particular liked it.
One day I got to court too early, before the florist was open, and I didn’t have a carnation on. When I stood up, judge Gilbert Harelson actually made some comment like “Mr. Bartolotta. I see that you don’t respect this court. You’re not properly attired. Now you may address this court when you are. Go get your carnation.” So I had to go to the florist and get my carnation and come back!
It’s gotten to that point.
Is it always white?
I used to wear red on occasion, and maybe on Saint Paddy’s day I wear green. But it’s usually always white. A funny thing.... My sister sent me some old family photographs, and my grandfather was in there sporting a white carnation boutonniere. I asked my mom and my aunts about it, and they said he used to wear one all the time. And I had no idea! It gave me goosebumps when I found out.
Can you tell when a jury had turned against you?
Thank goodness I haven’t had that experience.
Haven't you lost cases?
I’ve lost three trials in 20 years, but they were cases that I had taken over at the last minute from other lawyers. In one or two, I was offered money to settle, which was a victory, but the client said, “No, let’s take the high flier and see if we can get the whole banana.”
I’ve had many cases where I knew I was going to get what I asked for. Sort of like when I took the bar exam. People are always afraid to jinx themselves, but when I came out of the bar exam, I knew I’d passed it. I mean, I knew. Because I approached the bar exam as though it were not a test but a client sitting across the desk from me, asking me how I would solve those questions. I went about it that way because I thought to myself, “Well, if I didn’t pass that bar exam, then I shouldn’t be a lawyer.” And I’ve had that same feeling when I’ve walked out of many of my trials.
What would you do if you lost?
An old guy at Higgs, Fletcher & Mack, Al Weismantel, used to kid Dan Broderick and me. We were best pals and we used to go out and have a drink with this sage old lawyer, and he used to tell us that we weren’t seasoned. And we’d ask, “Well, what’s seasoned, Al?” And he’d tell us, “That’s when you have lost a trial that you expected to win, and you Find yourself fully naked in the fetal position in your back yard in a rainstorm. Then you’re seasoned.” Thank goodness so far I haven’t found myself to be seasoned.
What have been some of your most memorable cases?
I had one when I was in the Marine Corps that was great. [It involved a young enlisted man who’d been accused of injuring his leg in order to get out of working. ] We had this jury of beribboned gunnery sergeants and all these combat heroes — tough jury — and I’m in closing argument, and I’m making fabulous, fabulous eye contact with everybody. And I’m getting to the climax about how great this Marine is, and what a stud he is, when I notice that one or two of the guys in the back are looking over at him. I take a casual glance and here’s my client — head down, out cold asleep. This stellar Marine!
I died 10,000 deaths, standing there. Sweat was running down the back of my neck. What’ll I do now? Even if he woke up and the other eight didn’t see him, those two are going to talk about it. I have to address it. What do you do? You’re on your feet. You’re under the gun....
This house on Las Planideras in Rancho Santa is listed with the county recorder's office as that of Vincent Bartolotta. The assessed value as of November 27, 1985, was $1,523,405
I finally figured that the best defense was a good offense. So I just kept talking, and I started to slowly walk back over to him. I got behind him and lowered my voice, and then I slid down so that my head was just above his. I spoke real softly because I didn’t want him to wake. And I said, “You know, we’ve been here now two or three weeks, whatever it was, every day. At night you go home to your family. Play with your son or your daughter. Have a beer. But every day for the last two or three weeks do you think this young Marine has been able to do that? Here, on the most important day of his life, he is so fatigued, he is so destroyed, that he can’t even keep his head up. Don’t you think he’s been punished enough?” And they acquitted him!
So that one always leaps to my mind. You talk about living and dying in the same breath! That one stands out.
In the last two or three years, the Peake case was very, very significant to me. That was the boys who were killed in the bomb case up in Tierrasanta. The company that developed the Tierrasanta area didn’t tell the people that it had formerly been Camp Elliot, the bombing range. Half a dozen boys were out in a canyon playing, building a fort in the bushes, and they found a piece of ordnance, and it exploded and killed two and maimed one. That one stays with me. It ultimately settled for a structure that was $20-some million over the life of the family I represented.
Another recent case involved the Canadian volleyball team that was down here in Mission Valley. One member was killed and another brain-damaged in the Mission Valley Hotel. I represented both of them. I still get choked up over all these cases, but that one— the father of the boy that was killed and I still communicate.
The father was an avid golfer, and his idol was Craig Stadler. Well, Stads is a friend of mine, so I got him to give me a few of his personal shirts with the walrus on them, and I sent them to [the father]. He knew I flew in Vietnam, so this Christmas he sent me this Canadian memorial coin thing. This man’s life was his son. [He blinks back tears.] I’m getting choked up just thinking about it, because I relate to my own sons. I mean, his life was over when his son was gone. He told me when he golfs, his son walks with him.
Are you ever tempted to stop being a trial lawyer?
Not yet. I really feel I do some good. I tried a case in Carlsbad where [the city] refused to put in a red light, and my kids still kid me when we drive by. “Here’s Daddy’s red light,” because now they’ve put a red light in and no one else has been injured that I’ve heard of. The Tierrasanta bomb case, they appropriated $19 million in Congress to go clean the area out, so no one else got hurt. Then they did a thing on 20/20 [about the case], and I understand that Congress appropriated another $10 million to go clean up [a similar area in the Carolinas). When you see changes you caused to be effected, it’s pretty nice. Like, “My life is worth something.”
If you had been something else, what would it be?
I tell everybody that I wish I had a voice so I could sing. That would be wonderful to have this beautiful sound emanating from your throat, where you could enthrall thousands, millions. Or the other thing is an architect. I love to design homes or whatever. You can create something that will last beyond you.
Brian Monaghan’s law office building is hard to overlook. Architect Paul Thoryk did the postmodern redesign of what was once an auto parts warehouse on Front Street, just a few blocks south of the off-ramp leading into downtown from 1-5 south. Today huge letters on the side of the gray structure advertise Monaghan’s specialty: civil litigation. Monaghan is almost as imposing, physically. Six foot three and 220 pounds, he turned 53 on the day he gave the following interview.
The eldest of three sons of a Philadelphia pressman, he credits the rough-and-tumble world in which he grew up for fostering his love of courtroom combat. Monaghan graduated from the U.S. Naval Academy in 1962 and was stationed on destroyers based in San Diego until 1967. He attended Hastings College of the Law in San Francisco from 1967 to 1970, then joined the San Diego firm of Luce, Forward, Hamilton & Scripps, where he did only trial work. Among the corporations he defended were Ford, General Motors, Riddell Helmets, Traveler’s Insurance Company. “About the third or fourth year, I started getting more interested in doing the plaintiffs side, and when conflicts arose, I found it time to go out on my own.” He now practices with four other attorneys on an average workload of 25 to 30 cases.
Which of your cases from the last few years stands out the most?
They stand out in different ways. Most often talked about is the Riddle versus Southmark case. [It involved a Rancho Santa Fe couple who started a small timeshare exchange business that they eventually sold to the giant Southmark Corporation. Southmark then reneged on its promise to retain the Riddles.] Southmark basically just stole the whole company. That trial came in with a verdict of $131 million. That was in 1988. The verdict was reduced by the judge afterwards. He thought it was too high. And he was right. He brought it down to $22.7 million. It was settled while on appeal for a confidential amount of money. It was a lot of money.
As a result of our share of that trial, two of my three partners retired. One was 30 and one was 40. Because it was the largest verdict in the country that year, it took a reputation I’d worked for here in San Diego and moved it nationally.
The trial before the last trial was a great one. That was Bingham versus Rohr Industries [in which two longtime Rohr employees who had challenged management practices were fired, ostensibly because of their sexual relationship). The verdict was $4.4 million. My client got $3.3, the woman with whom he was engaged in a personal sexual relationship got $1.1. That case was wonderful because of the interaction with the woman attorney that I worked with. Ann Smith is a fiery, passionate woman, whose style is different from mine. She and Dave [Strauss, Monaghan’s partner] and I tried it together. The clients were great.... We’d come back here each night, and we’d laugh and have a great old time! It was a wonderful trial.
Why are there so few women trial lawyers?
I’m not sure there are so few. Particularly on the defense side. I see a lot of women there. There aren’t nearly as many at the 20-year level.... I guess the answer is that a lot more women have come into the practice, but they don’t have the years in the practice. And I think it’s also sexism too. I think among some trial lawyers at some firms there is still this archaic “this is a man’s job” sort of thing.
Is it, in your opinion?
I don’t think so. Actually, it would be awful nice for me professionally if I didn’t have to face women in court, because it’s much more difficult to practice against a woman with my particular style, which is very aggressive. I’m physically big, and I can’t do that with a woman.
So you do have to modify your style?
You do, more with a woman than I do with a man. [But] the basic [thing] you’ve got to be as a trial lawyer is yourself. I don’t try to be Milt Silverman. I don’t try to be Jim Brosnahan from San Francisco. I just try and understand who I am and be that person. Now I may be wrong about that person, but I have a person that I believe I am. It’s this big Irish bear. That’s my persona. I’m a storyteller.
How many of your cases go to trial?
It varies. Usually about 90 percent of all cases settle, [but] in our office it’s probably more like about 40 to 50 percent. Like, right now, we’re representing 131 people who were fired at the same time by a Japanese corporation — Kyocera Corporation. The case has been lumbering along now for more than 10 years. The legal cost out of our pocket is well over $500,000. And for Kyocera, it’s going to cost them a ton of money. The value [of the award] is in the millions, not just two or three million, but $20 million. Something like that. So if they can drag it out for another three or four years, they get the use of that money for that time.
What characteristics distinguish plaintiffs’ attorneys from defense attorneys?
Tremendous difference between them. Defense attorneys basically are counter-punchers. Their job is to stand between the plaintiff’s attorney and the money. They just have to keep moving around, fending off this aggressive plaintiff’s attorney. The plaintiff’s attorney is more creative. You’re the person thinking of ways to attack and put pressure on.
I find more people burn out on the defense side than on the plaintiff side. Except the pressures are great on this side, so you . find people having drinking problems....
What does it take to be a great plaintiffs’ attorney?
Imagination. Energy. Sheer energy. The ability to just work, work, work, work. Empathy. When I talk at law schools, one of the dumbest questions I’m asked is, “Should I work this summer for a large law firm or a small law firm?” And my answer is, “Work as a bartender. Work as a waiter, a busboy. Something where you’re serving people.” Because what you really have to make a judgment about as a trial lawyer is people. How are you going to be able to explain something complex to somebody in a short period of time when they have no background in it?
What about clothes? Are they important?
I think it’s most important that your clothes convey that you’re together. I don’t think they have to be really elegant. Some people dress really up. Pat Frega, for instance. But that’s very consistent with Pat’s whole style. Pat is at the outer edge of aggressiveness.
I don’t want to distract the jury, [so] I’m not flamboyant in the way I dress. The flamboyance [that Monaghan acknowledges displaying] comes in elsewhere.
When you’re examining your witnesses, the process is one where you almost recede out of the courtroom. Physically, you stand back, and you want the jury to be concentrating on [the witnesses]. I get almost where the jury has difficulty seeing me. My questions are coming in over the top, and [the jury is] focused on my client. Now when you’re going after somebody who is an opposing witness, say the president of the opposing company, then the physical positioning changes. I use my hands a lot. I’m coming at you. It’s not just a voice coming from the back. The attention of the jury is divided between the two of us. It becomes a real battle.
What do you do when you know that an opposition attorney is lying in trial?
What I do now is first try to get control of myself, because it really pisses me off. When I was at Luce Forward, my first 17 trials I won. I had a great track record. And then I bombed one time, and I went back to the judge afterward and said, “Can you give me some constructive criticism?” The judge looked at me, and he said, “In the beginning of the trial, you made a statement in chambers, ‘To the world at large, life is serious, but not hopeless. To the Irish, life is hopeless, but not serious.’” Which is part of my philosophy. But he said, “When that guy got up on the stand and started lying, you changed. You were not true to yourself. You got so angry you began to sound like a Protestant minister with fire and brimstone coming at him. Which isn’t your style. Your style should have been, [in an Irish brogue] ’Ah, there’s a bit of larceny involved.’ Something like that.”
So first I struggle for control, and then I try to find a way to take that lie and stuff it up his ass.
Can you tell which way a jury's going to go?
I can’t. I don’t watch ’em. Because early on, when I did, I found that sometimes they were drifting off. Some of them were sleeping. I had one of the worst experiences [with a client whose daughter died in an accident]. He was on the stand, and he loved that girl. And he was bleeding!
The other side objected [to some legal point], and everybody looked to the judge for a decision, and he was asleep. Just imagine....
So I’d rather just do the best job I can and let it flow. I can’t change what they think.
When they leave to deliberate, do you guess then?
Oh, yes. You guess, you wonder. You also beat yourself to death while they’re out, saying, “I should’ve done this. I should’ve done that.” The worst time of all is when you get that phone call — “The jury is back.” See, I’m a control freak. I feel that I can control or have some effect on everything.
How do you get the jury comfortable with the idea of awarding huge sums of money?
It’s different in every case. For instance, a wrongful death case. The Knott case [in which the parents of 22-year-old Cara Knott sued the California Highway Patrol along with Cara’s murderer, on-duty CHP officer Craig Peyer]. How do you show what the value of care, comfort, society, love, companionship, all those things are?
One thing I do that I don’t think I’ve ever seen before [was inspired by a game that Monaghan played with his children when they were young]. The neighbors would come over, and we’d all sit around the table...and we’d look at Kathi [his daughter]. And I’d say, “Color.” Everybody around the table would think of a color that she reminded them of. Now when they first started, it would be, “She’s got a yellow dress on. She’s got blonde hair” — it’s yellow. But as you do it more and more, as you go through two or three categories, they begin to really derive the essence of somebody.
And so I will put the client on, with no preparation, and I’ll say, “I want you to think about Cara Knott, your daughter. And I’m going to give you a category, and you tell me what you think of.” And I say, “A color.” The mother says, “Blue. A light blue.” “A movie.” The father says, “Sleeping Beauty.” I mean, so many powerful things come out — a piece of furniture, an animal, a bird, a song. Once somebody begins to do that, the jury begins to understand what that person was really like and begins to personalize it.
Personal injury. It’s tough. How do you value pain and suffering? The medical bills are the easiest....but you have to relate the sheer pain and suffering. If it’s a paraplegic, you say, “Do you know what the life of a paraplegic is? Do you ever think of how a paraplegic defecates? They have to use their fingers and gloves.” And the time they lose. We sometimes put our clients through time-motion studies. [The time and motion expert] will set people up of similar size and experience and time them doing activities. And he’ll be able to say, “Look, this person is going to lose six hours a day of their life, each day, for the rest of his or her life.”
How do you feel when you lose?
It depends a lot on the client. I tried a case recently for a wealthy guy and won him a lot of money. If I had lost that case, I would have worked myself real hard. But I represented a kid who’s a paraplegic, and I think he got screwed. He got a $7.5 million judgment and the judge took it away. My belief is that [the judge did so] because when he and I were lawyers, we tried a case against each other and I just kicked his ass all over the courtroom. Now I’ve got to live with the fact that this guy is on welfare for the rest of his life. So that’s a different thing. And I do get low. I get real low.
Do you take any time off after a trial?
I have to do that. I have to go to Cabo San Lucas or Puerto Vallarta. I have to get away. Not just go home and relax. Win or lose. I’m exhausted. But particularly if I lose.
You must have to turn many clients away.
About 120 cases a month are referred to us. We can only take about one, two, or three.... If we have an overhead of $120,000 a month, we’ve got to generate enough in fees to keep everybody working. And that requires major cases, and you’ve got to have major damages. There are [exceptional] cases we take because of the issue, if it’s really important to us. A sexually molested four-year-old girl. We took that case to the California Supreme Court. Major, major fight....
Do you ever have to turn down someone because they were partly responsible for what happened to them?
There’s two separate things. One, you turn them down because their level of responsibility means that the damages don’t make it worth it. But the other situation is that somebody will come to you and they want you to represent them...and when you start digging, you find they’re worse than the people they want to sue. And ultimately, even if I could accept it, my belief is the jury’s going to figure it out.
So are you turning them down because you couldn't win the case or because it*s morally problematic?
I’m not sure. Probably a little of both. Some of them really fool me, though. I take cases, and we go along, and it’s not until way late in the game that I figure out that I’ve been fooled.
What do you do then?
You’re stuck. Or I’ve had clients that turn on you. There was one case where right before trial our key witness says, “I gotta tell you, I was lying.” So what do you do? You can’t say, “Well, keep lying.” In that case, we had to bail out. We had to go to the client and say, “Look, the key witness is gone. If you want to spend another $50,000 or $60,000 [we can continue], but otherwise. we’re going to have to get out of this.” Usually it makes sense to do that.
Why is the social life of lawyers so demanding?
Well, ego probably is part of it. When you’re dealing with other trial lawyers, you’re basking your ego in the light of each other. The second part is the creative thing. You get ideas by bouncing theories off other lawyers. And it really is fun. You’re talking about life. So these are fun conversations. There have been people I’ve dated who get bored by it after a while and don’t understand it. But as a trial lawyer you get to learn all kinds of stuff. Those are two of the reasons. Another is pressure. One way of dealing with pressure is exercise. Another way is alcohol. Or social venting. So you go to Dobson’s and you stand around and you talk about your cases, and you have a few belts.
To what extent do you have to participate in the social scene?
You don’t. Like, for instance, Dave Strauss. Dave doesn’t participate in any of that stuff. I do. I’m very active socially. Because I just love people! I went to a lecture last night by some panel of lawyers who do business litigation. And you go and there are 300 other lawyers there and people are coming up. One guy came up and I’m in a case with him today. And I just threw a little barb at him. I told him something about his client that he didn’t know. I said, “Did you know that Bill Koch [the attorney’s client] has a replica of the America’s Cup?” I know how much it costs. I know when he got it. But he doesn’t know how [ I know]. You tweak ’em a little bit. He wonders, “Hmmmm. How did he know that?”
If a friend becomes a judge, how does your relationship change?
It depends. A lot of those judges are people I’ve tried cases against and I’ve been friends with. It’s a miserable job, being a judge. I would never want to do it. It’s like being a rich person or a powerful person. You’re not sure why people are coming to you. But people that I’m very friendly with are on the bench, and there’s a difference. I don’t talk about cases the way I did before. I don’t socialize publicly as much.
Do you keep them as friends?
Oh, yeah. But we’re a little bit further apart. I’m a hugger. And I hug other male lawyers. But once that male lawyer becomes a judge...eh, it’s different. I don’t do that. At least not publicly. And suppose you’re used to being hugged. And all of a sudden — no hugs. You begin to use deodorant!
Do you worry about the cumulative toll of all the stress on your body?
Yeah. I’m about 15 pounds overweight, which I don’t like. This may sound like a strange thing, but I’ve heard other Irish people say this. I always believed that I was going to die before I was 40, and so I lived my life so as to get it all done by the time I was 40, and then I blew through 40. Now I’ve blown through 53. So I’m still adjusting to the idea that I’m living on somebody else’s time. If I die having as good a time as I am right now, the only thing I’ll feel bad about is my kids and my grandchildren will not get the benefit of me. Now there’s an ego for you.
The daughter of a Colorado probate and tax attorney, Virginia Nelson says one of the clearest pieces of advice her father gave her was to learn how to try cases in front of a jury. “He felt if you could do that, you could do anything.” She attended the University of San Diego’s law school from 1976 through 1979 and while there began working as a law clerk for a small firm specializing in personal injury and medical malpractice law. Although several of her close family members work in medicine. Nelson overcame her hesitancy about medical malpractice, and after getting her law degree, she joined the firm, becoming a partner in 1982. She went into practice on her own in 1986. Now 39 years old, she and associate Kathleen Cuffaro work out of offices in Brian Monaghan’s Front Street building.
Why aren't there more woman trial lawyers?
It’s real tough in the courtroom. It’s just really hard. It’s not a forum that [my] generation was raised to feel comfortable in. I think younger women who have been competing more in sports at a younger age and who have more role models will have a much easier time. But women receive increased scrutiny; I know this is true for me. The jurors are always noticing what I have on. What jewelry I’m wearing. How I relate to the men. Usually they want to marry me off to somebody in the courtroom. They have to fit you in to something.
And they don’t tolerate aggressive behavior from women as much as they do from men. Sometimes I talk to jurors, and I’m amazed. I had a case against a lawyer who’s a very intimidating, brooding presence. I kind of went after a witness because I didn’t think he was telling me the truth. The [jurors] thought I was too harsh on this witness, whereas they felt this other fellow — who makes me look like Mary Poppins—was fine. Now that just means that they’re accepting of different behavior from him than they are from me.
In another case, we talked to the jury and they told us that the defense attorney and I looked like Ken and Barbie on a wedding cake.
Are there times when you feel more aggressive than you’re able to demonstrate?
There are times in cross-examination where I really have to go after somebody. Not in a vicious, biting, or rude way, but it’s still confrontational. And there’s a voice inside me saying, “That’s not nice.” I don’t want to overgeneralize, but in society women have been nurturing and sensitive, and cross-examination is not nurturing.
Do you exclusively handle medical malpractice cases?
No. A big portion of my practice tends to be that because I like it. Usually about a quarter of what I do is other personal injury cases.
How many cases are you normally working on at a time?
No more than 20, because they are big cases.
How many go to trial?
A small percentage. It’s hard to say. Let me give you an example. In 1991 I think I had 20 cases...I tried one in February, the next 18 or 19 settled, and then I tried one late in the year. So I’d say maybe five to ten percent. That’s an estimate, but that’s fairly typical.
What does it take to be a good trial lawyer?
Enormous drive on the plaintiffs’ side. You can never give up. It takes great intensity because you have to focus on so many things at once. You’ve got the judge, the jury, your client, opposing counsel, court personnel, witnesses. You have to be able to think about all those aspects of a case at once. You have to be incredibly prepared. Then you also have to have an aspect of your personality that persuades a jury.
And everybody does that differently. Some people persuade by intimidation. Some people persuade by “I am a reasonable person. You are reasonable people, ladies and gentlemen. Come with me.” Some people persuade by charm. I’ve seen them all. I think I have a different style than the men. I have to do it in a way that’s comfortable to me and that the jury sees is appropriate to a woman.
Some things you can do more effectively than men, because the jury accepts things from women that they don’t from men. In damages, for example. I think a woman can more easily display emotion and tap into feelings. If her eyes well up with tears, say, the jury probably will tend to accept that more readily than they might from a man. But on the other hand, they don’t accept things that they do from men. So you have to be very careful.
Is it easier to be a defense lawyer?
I think so. If they were all sitting here, they might not agree. They would tell you that they don’t pick their clients, but I think having the burden of proof and being effective in selling your case without alienating some juror in some way is harder. And you take all the risks. I mean, the plaintiffs’ lawyer is it. There’s a reason why there aren’t 500 successftil plaintiffs’ lawyers in San Diego. It’s very difficult. One perception is that it’s all a big vat of money that people fall into, but the plaintiffs’ lawyers that I know well work incredibly hard. They may not want you to know that. But anyone who has achieved that level of success has to.
What are your hours like?
Long. But I have a very strong commitment to the legal community and to the community. So it’s many easily 12-hour days, six days a week. It’s very intense. And when you’re in trial, it’s 24 hours a day. That’s it. That’s all you can think about.
How do you have time for your marriage?
I make time.
No, no kids. There aren’t enough women lawyers out there trying cases, and I think one of the difficulties is the enormous amount of pressures that they have on them from all aspects of their life.
When you're in trial, what influences your choices about the clothes you wear?
For women, that has really changed over the 14 years that I’ve been doing this. In the beginning, it was very prim and proper, mimicking men’s dress, only the little bow ties. I remember one time when I was a young lawyer, going into this shoe store and having this long conversation with this guy as to whether I could wear slingbacks. That’s how concerned I was. That was about 10 years ago. One of my friends still laughs about that. I was very navy blue suits. But over time that style has gone away and been replaced by much more versatility on how women can dress.
However, I still believe that in a trial situation, I want my jury focus to be on the witnesses who are testifying and on the case and not on me. I don’t wear a lot of jewelry or makeup. I don’t try and come in with designer outfits every day. But I have had trials where jurors have said, “Why did you not wear earrings that one day?” Or, “You wear pearls too often.” I mean, just unbelievable stuff.
Can you tell when a jury is turning against you?
Sometimes. Both ways.
I can just feel it. Sometimes that’s good, and sometimes that’s bad. Sometimes there are those classic things, like the body language of the people or whether they’re writing down numbers on damages. But I think I can really sense what they’re thinking.
I do feel that women have heightened sensitivity to other than just verbal communication, and it’s an advantage.
What have been some of your more satisfying cases recently?
I’ve had several cases where there was one side saying one thing, and another side saying another, and I have proven that there were altered records. When we proved that, it enabled my clients to get funds to be able to live with help, rather than to be scraping along at the very bottom. And I’ve had many, many of those.
How do you find out that records have been altered?
In one case. [Nelson’s client claimed she called her eye doctor many times, reporting symptoms that got progressively worse, only to be told each time that she shouldn’t worry. Eventually, the woman went blind.] When I got the physicians’ records, they said she was told to do X, Y, and Z [that is, to take various actions to deal with the problem].
How did you prove that the records had been altered in that case?
There’s a process by which the technicians can take a sheet of paper, in this case the doctor’s records, and put it on what looks like a Xerox machine. Then they put Saran Wrap over the paper. The Saran Wrap goes into impressions, if they exist, from what was written on the paper that was once above it. What we were concerned about was, for example, the visit in January. We took the record for the visit of December, inked in the imprint of that paper below and got a different original, meaning that this thing had been rewritten.
That's sort of a fancy version of scratching the pencil over the note pad?
Yes. It’s called an electrostatic detection apparatus.
I had another case where the whole issue was whether this physician told this patient to go do something. There are all these notes saying, “Go do it. Go do it. Go do it.” But we got a test that had been done much later in time that had the imprints of these instructions. They were imprinted on a piece of paper that didn’t exist at the time they claimed.
So those are satisfying because I play detective.
Tell me about the case that was mentioned in the San Diego Trial Lawyers Association newsletter involving the cruise control crash.
Oh, that was a personal injury case. Our client was a passenger with a friend in a car. His friend fell asleep and ran into the back of a semi. And our client went into the dash and the windshield and had some bad facial injuries.
Did your client sue his friend or the driver of the semi?
No, the semi was moving. He sued his friend. [The settlement in that case was about $100,000.]
In some cases there is a mixture of responsibility, isn’t there?
Sure. What you’re talking about is comparative negligence. Say in this case where the guy went into the dashboard. He wasn’t wearing a seat belt, so he would be partly responsible for his actions because he didn’t have a seat belt on. Or let’s say someone comes to you and says, “Well, they didn’t diagnose my lung cancer fast enough,” and you find out they’d been a smoker for 40 years. Then there’s some apportionment of fault. That would not stop me from taking the case. It just means that in the scheme of things there’s going to be responsibility placed on a number of parties.
Pat Frega was a Marine heading to Vietnam when he decided to become a lawyer. He says a friend was wrongly accused of a minor infraction that put him in the ship’s brig on bread and water, and Frega faced a special court martial for trying to get him food. In the ensuing legal proceedings, Frega defended both himself and his buddy and won dismissal of the charges. After his military hitch, he returned to college, got an undergraduate degree in political science, then attended Stetson Law School in St. Petersburg, Florida. He practiced in Florida and New Jersey for a while, coming to San Diego in 1979.
In 1981, he formed his own firm, which now employs five lawyers and accepts 12 to 15 cases at a time. Now 47, Frega concluded his most recent trial the first week in March, when he argued before a Superior Court jury that lawyer Sam Spital was guilty of legal malpractice in his dealings with a brick mason’s tender named Jerry May. May had gone to Spital after falling off an unsafe scaffold erected by his employer, a masonry subcontractor to Nielsen Construction, and as a result permanently injured his shoulder, neck, and arm. Spital’s office got May just $2000, at which point May turned to another attorney named Jeff Estes, who ultimately directed him to Frega. Frega convinced the jury that Spital should pay May $7.5 million.
According to the county recorder's office this house of Patrick Frega's on Las Cuestas in Rancho Santa Fe was assessed on Ocotober 31, 1986 at $1,003,480.
Why did it take so long for someone to sue Sam Spital?
I think [there are] a combination of reasons. First, our profession unfortunately learned from the medical profession, “Don’t go after your brethren. Don’t sue another lawyer, because he or she may sue you. Bury the dead.” It’s disgusting. It’s like having a dirty cop.
Another reason is that for the most part [Spital’s cases were], quote, nickel-and-dime cases. They’re soft tissue [injuries]. It just so happened that Jerry May wound up with an ethical lawyer in Jeff Estes. Jeff did what he could. He recognized he couldn’t try the case. The presiding judge had said, “I’m not going to continue the trial date, because it’s been continued once, and Judge McConnell, who continued it, said you will get no more continuances. I am not going to let you have any more experts, even though you need them. You’re going to have to go to trial. But I’ll send you out for a settlement conference.” And the settlement conference judge told them — right on the record — “Take the $70,000-plus for future meds because you don’t have a choice. You have no experts, and you’ve got a trial coming up tomorrow.”
So I think Jeff Estes deserves a lot of the credit as far as getting Jerry to a lawyer [who would sue Spital], because I don’t think Jerry would have known [that Spital could be sued for legal malpractice]. At that point, [with the help of Estes] Jerry had, like, $85,000 in his pocket. The thing that really triggered it was that Spital then sent a letter to Estes demanding a $25,000 lien. He still wanted his pound of flesh out of the $85,000 that Estes ultimately got for Jerry. And then Estes wrote him that letter, which is in evidence, saying, “I’m telling you, you’ve committed malpractice. You’re unethical. You’re not entitled to anything.” And that’s where it started rolling.
Did Estes direct Jerry to you?
Estes gave Jerry a number of names. He said, “What I think you should do is talk to a lawyer who would sue him for malpractice. At this point, I’ll be a witness....”
What was your reaction when Jerry May walked in?
He spoke with Dave Tiffany, my partner, first, and Dave told me. My first thought was I knew that everything that was alleged was true. Because I knew that Spital was committing malpractice from way back when. It was just a matter of damages. And I said, “I know it’s going to take a lot of time and effort. I want to meet the client.” And I liked Jerry instantly. I saw he had a career-ending injury. So I said, “Fine, then the case was a multimillion-dollar case in the first place. Now we have something to go on. And it’s just a matter of doing it.”
I knew the liability was there.... I knew we had despicable - conduct. I knew what [Spital’s] M.O. and habit and custom were. And I knew we had punitive damages. I knew the defense would say, “Well, who cares how bad Spital is? This case wouldn’t have been worth anything anyway.” So that was the big challenge.
Do you think Sam is out of business at this point?
No. I don’t think Sam is out of business. If he goes back on the tube in a month or two months and just changes his name...people forget, very quickly. The only way he’ll be stopped is if the bar does something....
Do you think it’s possible for a person like that to change his ways?
It’s so tough. I was thinking that, in fact, as I was cross-examining him. I had him on for about nine days. He actually believes that he is the person on television. He believes he’s the person he personifies. When [in one commercial] he is walking next to the guy in the wheelchair, he believes that he has just come out of court, and he’s got this man a big verdict for the injury that he sustained, when in fact he never observed the trial. He didn’t even know the man’s name. And in 12,000 cases he’s had, he has never been to trial once. That’s the pathetic part.
And I’ll tell you what. If you ask a majority, if not all, of these advertising lawyers, you’ll get similar responses: “How many times have you been to court on a major case?” If they’ve been in there at all, it’s been on petty cases. Because you can’t take the time and energy and resources and put them into the media and still have enough left over to put into your practice. You simply can’t do it. Of course the lawyers that get the results don’t have to do it. They get too many cases. I mean, during the two months that we’ve tried the Spital case and since then, we’ve had, like, 750 people wanting us to represent them in similar types of cases. Now the majority of them are not meritorious.... But there are a lot of unhappy people with lawyers. Because of the way the lawyers handle the cases.
What do you think about lawyers advertising?
As long as they make a full disclaimer that there are no guarantees, just as we have in our retainer agreement. It would be nice if what we did in the Spital case causes people to go in and say, “How many cases have you taken to trial? What are your average settlements? What is your case load? What is the experience level of your other lawyers? Who is going to be doing this?” But if you have a problem and you go to a lawyer, the lawyer takes control of what goes on. And the average person is afraid they’ll have nobody to represent them. They’re just happy they found somebody.
You think advertising is not bad per se?
That’s what the courts have said. And I think there are lawyers who advertise who do a good job. They’re fine lawyers. Jeff Estes is an example. Jeff Estes is in the Yellow Pages. And that’s fine. The problem with being an advertiser is that even good lawyers tend to be inundated with too many cases. And I don’t care who you are. The best lawyers in the world, if they take on too many cases, start getting attenuated, and they can’t do a good job for their clients.
But if people ask how many cases somebody has, there's no guarantee they’ll get a straight answer, right?
Well, I think they will. I think if you say to a lawyer, what is your case load? And that lawyer says 150, you’ll know that there’s going to be a problem.
You think Sam Spital would have said 1000 if somebody had walked in and asked him?
No, I don’t think Sam Spital would tell the truth. One thing we’ve established in this case is that Mr. Spital doesn’t know what the truth is. He had 1000 cases one day. He had 800 another day, and he had 500 another day, all during the same period of time.
How many of your cases go to trial?
I like to think most if not all of my cases might go to trial. I’d rather deal from a position of strength. If the insurance defense bar believes you want to settle your cases, then they’ll discount the value of the case, the full cup of justice. And I’ll tell you what; if Mr. Spital had paid Jerry May $7.5 million on this case, it would not have had the deterrent effect on the other advertising lawyers that this verdict has had. Because all of a sudden, [Spital] is dying by the sword. He’s exposed by the media that he’s used and manipulated over the years to lure people in....
Some cases have to be tried. But you have to weigh that against the trauma to the client. Because it’s a very, very traumatic experience doing this. About three or four years ago, I had a case with two little boys that got blown up in Tierrasanta.
Bartolotta and I were supposed to try it, but it settled. And I was mad. I was upset. I wanted to try it, but I had a mother and father who had been divorced [in the wake of their son’s death]. They were nice people. And [the defendants] paid us more for our case than anyone had ever paid for the death of a nine-year-old child.
You want to send a message in that type of case, but the people you would send the message to wouldn’t get the message anyway. You’d be sending it to the United States government, and the United States government first of all wasn’t a tangible defendant.... And we’d be going against Christiana, who was the developer, and Christiana was out of business. Most of the people were like 60, 70, dead. But that was one case I wanted to try.
Are there cases you are happy to see settled?
Yes. Certain cases where people need the money. We had one gentlemen recently who was going into a complex, and an iron gate fell on him. He was hurt pretty bad...and he was bankrupt. Needed the money. And he got a half a million. To take a case like that to trial and get him a million and a half or more, and then go on appeal, with a chance of somebody cutting it down, and then not having the victim get the use of the money for that period of time, well, in a case like that I thought it was better to settle.
Another example is the J. David case I worked on. In that case, we had an option of taking a case against Rogers and Wells, which is a major, major law firm. We could have gotten maybe $200 million in punitive damages. We settled with Rogers & Wells for $40 million. We did it because we had people like my client, Anna Pulaski, who was something like 75 years old, in a wheelchair; and sure, I’d be a big hero, but her heirs would get the money. If this woman got the use of this money, and her own investment was, like, $50,000, $60,000, but if she got to use that money for the twilight years, well then, she’s entitled to it. It’s wrong for me to say, “Hey, let’s take it and try and whack these guys.”
You have said that plaintiffs’ lawyers should be called victim’s lawyers. Does that mean defendants are never victims?
Well, I believe that when I speak in terms of victim’s lawyers, I speak in terms of the cases we handle. People who have been victimized by faulty products. Would I say General Motors is a victim? No. Not in that capacity. They may be if in fact I am engaged in a suit against some Japanese manufacturers because they had done something, flooded the market with trucks, and caused the price of the GM trucks to go down, in that capacity they could be. So to answer your question, yes, they could be victims.
But the term plaintiffs’ lawyer gives you the connotation of a, quote, greedy lawyer. It’s perceived that way even with judges.
They think that plaintiffs’ lawyers are more or less shysters coming in there, except for a few that have the respect in the courthouse.
I don’t want anybody to lose sight of the fact that when I represent someone, that person is a victim. There’s no doubt in my mind, and there should be no doubt in your mind, that Jerry May was a victim. His status has been elevated now because he’s gotten his full cup of justice, if he collects it, after the appellate process. But he’s a true victim, and I can’t lose sight of that.
You can’t work on a business level. That’s one of the mistakes Spital did. It’s not a business. It is a noble calling. You have to care about that person. And it’s tough saying to my young associate, who’s been a lawyer for three months, “Okay, you’re going to work 60 or 70 hours a week for Jeannette. She’s a plaintiff.” But if I tell him, “She’s a victim,” and he believes it and I believe it, then he can do that. You have to work on that emotional level.
Do you have a family?
Yeah. Married and have four kids. Seven through 12. My wife is understanding. But it takes a toll. That’s why a great many trial lawyers wind up with serious domestic problems and divorces. You have to care about your client. And it’s tough for people to understand that emotional level you work on. That’s the most grueling thing....
Is it most grueling when you're in trial?
No, it’s emotionally grueling preparing for the case. When I prepare for a case, they don’t see me in the office. I have a hideout. And I’ll change it when too many people know the phone number there. I have a fax and a phone, and I’ll sit there and I’ll work 15 hours a day. I’ll take time out to work out, then go back to work. I don’t have time for bar functions or trial lawyer functions or seminars. Well, I don’t do seminars because I don’t want to teach the other side the tricks. Anything I know I don’t want to teach them. I don’t want them to use it against victims’ lawyers. I guess I am a fanatic. People have said that. But you have to be. I think some of us have to be fanatics. I mean, talk to Brian Monaghan, you’ll find somebody that’s as bad as I am or worse.
On a scale of one to ten, how aggressive are you?
You’d have to ask the defense boys that, but I’m way up there. Aggression is my thing. I can’t like my adversary. I’m sorry. I can’t. And it’s caused me problems. Some people I liked wanted to get me into the American Board of Trial Advocates. And I said, “I can’t eat with someone and talk with someone who I am looking to annihilate at trial.” Because the defense attorneys will always say, “I’d like to give you more. I’d like to do this, but the [insurance] carrier won’t let me.” The victim’s lawyer can’t say, “I’d like to settle a case but my client won’t let me.” So I can’t get close to them. And this is the thing I’ve got with Bartolotta and Monaghan and some of these other people who will do it. Of course, Monaghan, he’ll turn around and sue them anyway. He’s something else again.
How angry are you on a scale from 1 to 10?
I get angry at injustice. You saw that movie Class Action, I’m sure. If you haven’t, see it. When I went to see that movie, I thought they were going to lock me up. My poor wife was so embarrassed she had to go sit on the other side of the theater. Because I was yelling at the screen! I said, “Look at that dirtbag! That’s what they do.” There were some people in the theater, saying “Will you keep quiet?” I said, “I’ll keep quiet. I’ll put you away too! You probably work for them.” I mean, it was embarrassing.
I finally caught myself. “What the hell am I doing?” But it really personifies the anger that a lawyer gets. Brian [Monaghan] does it. He’s the one guy I can say that gets at that anger level I do.... We’ve had this thing over the years.... I’ve always had it for the false advertisers, and he’s had it for the defense firms, the milk trucks, as we call them, that bill out hours and hours and hours....
So you're angry and aggressive. But you don't look like a wild man. You have a reputation for dressing really well. How important is appearance?
Oh, it’s very important. The jury has to be able to relate to you. They have to like you. And even though there are some fine lawyers running around with long hair and ponytails, whatever, bald heads and turbans, they can do it. But I think a jury has to feel that they trust you, and they’d want to sit down with you in their kitchen, having a cup of coffee with them, chatting. Because that’s what it boils down to. We have to, all of us, transcend our own ego, and say, “Hey, it’s not my case, it’s [so-and-so’s] case. What’s best for him or her?”
Has your look evolved over the years?
I’d say it probably has. It’s what I’m comfortable with. People tell you to be yourself; Bartolotta wears flowers. I like handkerchiefs. It’s just what I like to do. But you can’t be someone else. And I’ve seen people that tried to be me. Or look at Brian. Brian’s a good example. Brian doesn’t dress flashy at all. He doesn’t. He dresses Brian. But he comes out and just takes control. He’s very dominant, very strong. Now McClellan looks like he’s still at Luce.
Do you repeat courtroom tactics? Like the three-foot silver sword that you waved around during the closing arguments of the Spital trial? Had you done that before?
I’ve never used the sword before. That particular sword was given to me by a client as a Christmas gift. I said to myself, “Self, in the punitive phase, the jury has to know that they have to wield that sword and do something with it.” And this was the right jury for it. I had a great rapport with them. I’ll tell you when I saw it — when two women refused to look at Spital when he got back on the stand. They utterly refused to look at him. And these were friendly people. So I knew that this jury wanted to do the right thing, and they just had to know they were strong....
What about telling Jerry to step outside at certain points during your closing argument?
I cared for him, and I did that during the trial every time these — I hate to use the term idiots — but these shrinks would come up and say things about the guy which were really demeaning and condescending.
Comments about his intelligence?
Not only his intelligence. But that he’s childlike. That he’s infantile. That his “me” is very low. That his mother has to take care of him. That his girlfriend has to baby him. Come on!
I’ll tell you where I learned that. I had a mechanic one time, and he was test-driving a car, and he leaned over to do something and somebody rear-ended him. He got hit in the crotch with the gear-shift lever, and he wound up with Peyronie’s disease. It’s a rare disease that gives you a crooked penis. You can’t have sex. And here’s a proud, macho, German guy, 47 years old. His wife was an attractive blonde who left him because he couldn’t service her. That was his main problem.
One of my associates was Glenn Warren, who is an outstanding lawyer, but he did a lot of criminal defense stuff, and when you do that, you don’t have any feelings for your client. I had another case at trial, so [I asked Warren to handle the mechanic’s case]. And I said, “When you do your closing arguments, make sure that you don’t have him there. Be careful. You don’t want to embarrass and humiliate him.”
Well, Glenn wanted the client to see what a great lawyer he was. And the jury came back with an award of, like, $ 150,000. And there were five or six people on the jury that wanted to give the guy $600,000 or $700,000 for all of the loss of the sexual function. There was a question of whether it was related and whether he really had it. And the client was good. But the jurors said, “If you cared and you really thought he had it, why’d you have him in court?”
The men are the ones that burned him. They said, “If I couldn’t do it, I wouldn’t want to be in court listening to that shit. You knew it wasn’t true, and we didn’t believe that.” Glenn didn’t want to tell me, but my other associate who was working on the case told me, and Glenn left shortly thereafter.
What about the scaffold that you brought into the courtroom?
I think we had to do that to show the jury exactly what [Jerry May] was dealing with. I wanted to bring the jury out and have a scaffold set up outside the courthouse, but the judge wouldn’t let me. You can’t see from a picture. You don’t know! But we had the boards on the floor. And I said, “Holy mackerel! Why don’t you put those things on the table.” So we [did] and when the judge [Vincent DiFiglia] came out, he looked and he says, “What are you doing, Frega?” [DiFiglia allowed the demonstration.)
I’ve known him when he was a trial lawyer. He was great. He knows the evidence code. And he knows where you’re going most of the time before you get there. You don’t have to explain things. The worst thing you can have is a dumb judge. Or a judge who doesn’t have command of the evidence code, because what judges do is they fill up the infirmities in their personality with power.
Would some judges not allow you to set up the scaffolding?
Sure. It’s discretionary. Some judges wouldn’t allow you to use charts! They’re defense-minded judges. They’ve either known the defense lawyer, or it’s a buddy thing. Again, they lose sight of the victim. Or they say [ pompously], “Well, the defense is entitled to a fair trial.” Well, let ’em get their own scaffolding! Let ’em get their own charts!
Did you know how it was going to go this time?
You never know. I felt comfortable. I felt good. And I can tell you something. I have never had a jury verdict that shocked me, even if it wasn’t what I liked. I can always understand what a jury did. I have been shocked by judges. I have had cases so complicated that you had to go to a judge. But I agonize over it. [DiFiglia] is a great judge, but I wouldn’t have wanted him to try [the Spital] case because he wouldn’t have sent this message. A judge will not send this message.
The judges just won’t award as much?
They don’t. They’re influenced by their peers. As much as the judge tries to be like a jury, the judge isn’t working on the street. They’re not driving trolleys. They’re not working in stores. They’ve been lawyers!
Will you ever quit working as a trial lawyer?
I’ll probably die in front of a jury. They’ll probably bury me right near the courthouse. You know, certain people have the gift of dedication. Of wanting to do it. I remember talking to Brian [Monaghan] about this a couple of years ago. I heard that he was thinking of retiring. “You can’t retire. I won’t let you retire. Do you know what’s out there? Who will take these cases? Who will do it?”